Variability of death penalty attitude in China: an empirical test of the Marshall hypotheses

Abstract

Though empirical studies of the Marshall hypotheses are rich, few examined the hypotheses in non-US nations. Based on a sample of 1077 students and a quasi-experimental design, this study tests the Marshall hypotheses in China. Except the control group, three intervention essays (on ‘international trend’, ‘wrongful conviction’, and ‘deterrence’) were provided to three experimental groups and students’ opinions were surveyed afterwards on capital punishment overall and six specific capital offenses. The results showed that the majority of Chinese students favored capital punishment and the wrongful conviction essay helped significantly reduce students’ support in the overall death penalty opinion, consistent with the Marshall hypotheses. Nevertheless, the international trend and deterrence essays boosted students’ support when opinions on specific capital offenses were surveyed, producing a counter-effect. Consistent with the hypotheses, students with a retribution belief were more likely to favor capital punishment and less likely to be swayed by essay interventions.

Notes

Publisher’s note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Appendix: Intervention Essays

Essay I: International Trend of the Death Penalty

Abolition of the death penalty is a major trend of the intentional community. Since 1990, the pace of death penalty abolition has been accelerated significantly and on average three nations abolished the death penalty in each year. By 2015, 140 countries of the world (more than two thirds of all nations) have abolished the death penalty either in law or in legal practice. Among developed countries, only the United States and Japan retain the death penalty, while the Europe Union, Canada and Australian countries all abolished their practices.

China was considered the largest user of the death penalty by the international community. Thousands of people are sentenced to death and executed every year. Besides China, countries with the most executions are Iran, Pakistan, Saudi Arabia and the United States. According to statistics reported by the Amnesty International, at least 1634 people were executed in 25 countries in 2015 (note: this number does not include China).

There are 46 capital offenses in the current Criminal Law of China (amended in 2015). Besides homicide and violent crimes, crimes that do not cause people’s death such as certain property crimes, economic crimes and corruption crimes can also be eligible for the death penalty. In comparison, federal laws of the United States contain 41 capital offenses, most of which are related to homicide and offenses that cause people’s death (such as deaths resulted from kidnapping, drug trafficking and aircraft hijacking). Only three offenses without human death are eligible for the death penalty in the United States, including treason, espionage and mailing of injurious articles with intent to kill. However in real legal practice, these three capital crimes are rarely applied and therefore exist in names only. In the new twenty-first century, death penalty executions in the United States experienced a gradual decline. In 2016, only 20 people were executed, which is the lowest number of execution since its peak in 1998 (when 98 people were executed).

In the process of death penalty abolition, international organizations played a prominent role. The Universal Declaration of Human Rights announced by the United Nations in 1948 proposed the concept of ‘the right to life’ for the first time. In 1966 the International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations General Assembly demanded that capital punishment, if retained, shall be imposed only for “the most serious crimes”, and encouraged eventual abolition of the death penalty by all nations. In 1989, the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty commits its members to the abolition of the death penalty within their borders except “in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime”. In 1997 the United Nations Commission on Human Rights adopted a resolution on the death penalty calling upon all countries that retain the death penalty to suspend executions, restrict the number of capital offenses, and timely make transparent information about one’s death penalty executions. In 2010, a resolution to establish a moratorium on the use of the death penalty by United Nations Human Rights Commission received 107 votes in favor, 38 against and 36 abstentions. The resolution gained the most number of votes in favor since its first proposal in 2007, which reconfirmed the world trend to establish a moratorium on the use of the death penalty.

All of the above indicate that the abolition of the death penalty has become a primary focus of international public law. Overemphasis on one’s self-determination and on one’s special national conditions while ignoring the trend of death penalty abolition under the background of international human rights movements does not bode well with China’s position as the world second largest economic entity. It could also create realistic problems in China’s legal practice (such as international judicial cooperation and extradition agreements). For example, Lai Changxing, the primary culprit of the Xiamen Yuanhua smuggling case in the 1990’s escaped to Canada after the exposure of his crimes. From 2000, the Chinese government had been negotiating with the Canadian government and asking for Lai’s extradition. However the Canadian government refused to consider the negotiation unless China promised not to death-sentence and execute Lai. Only until 2011 was Lai extradited to China and subsequently sentenced to life imprisonment in 2012. In recent years, judicial reforms in China (such as reduction of the number of capital offenses, restriction on eligibilities of capital offenders, and increasing procedural justice and transparency) further indicate that China is moving closer to the requirements of international standards. The number of capital offenses has been reduced from 68 in 1997 to 55 in 2011, and again to 46 in 2015.

Essay II: Wrongful Convictions and the Death Penalty

Disposition and prevention of wrongful convictions could be viewed as a litmus test to the criminal justice system of a nation. As early as 1747, Voltaire wrote, “it is far better to let a guilty man walk free than to have an innocent man wronged”. Because of the irreversibility of the death penalty, it is critically important to prevent wrongful convictions which may result in executions. In reality, although safeguards have been adopted by various criminal justice systems, wrongful convictions still occur from time to time. Take the United States for an example: although the United States Supreme Court has established a stringent judicial review system for capital punishment, wrongful convictions are still unavoidable. According to statistics of the Death Penalty Information Center, from 1973, a total of 157 defendants have been exonerated. With the adoption of new technology (e.g., DNA testing), this trend of reversing wrongful convictions has been accelerated since the late 1990’s. From 1973 to 1999, there were an average of 3.03 exonerations per year; from 2000 to 2013, this number was increased to 4.29 per year. Defendant who were exonerated spent an average of 11.3 years from the moment of one’s death sentence to one’s final exoneration.

Wrongful convictions often cause a series of problems with negative effects, but most of such problems are overlooked by the public. Firstly, wrongfully convicted defendants lose their personal freedom, and suffer from incarceration until one’s exoneration, and some are even wrongfully executed. Secondly, due to wrongful convictions, the real criminals may not have yet been arrested. Not only did the real criminals escape from deserved punishment, they may also continue to commit more crimes. Besides, wrongful convictions waste tremendous human, material and other social resources. Wrongful convictions also weaken the public’s satisfaction with and trust in the criminal justice system.

Reasons that lead to wrongful convictions are various, but are often closely related to the criminal justice system of a nation. Studies of American wrongful convictions revealed a number of key reasons, including eyewitnesses’ false testimonies (misidentification), (coerced) confession by wrongfully convicted defendants, subjective and obstinate opinions by the police/prosecutor, wrong information provided by informants, wrong forensic examination results, prosecutorial misconduct, and lack of effective criminal defense. Compared with the situation of China, besides all of the above factors, scholars pointed out many others such as use of torture, over-reliance upon one’s confession, illegally extracted evidence, falsification of evidence and concealment (by the police), overlook of exculpatory evidence, rejection of reasonable opinions of defense attorneys, and the traditional ‘presumption of guilt’ in practice.

In recent years, frequent exposure of wrongful conviction cases shows increasing attention given by China’s criminal justice system to wrongful convictions. It also reveals serious drawbacks of China’s system. A white paper titled The Judicial Disclosure of Chinese Courts (2013–2016) published by the Supreme People’s Court revealed that in 2016 alone, courts in the whole country corrected 11 new major wrongful conviction cases (involving 17 people). From 2013 to 2016, courts at all levels announced 3718 defendants ‘not guilty’, accepted a total of 16,889 state compensation cases, and compensated a total of 699 million RMB. Many infamous unjust verdicts and wrongful convictions have become classic textbook cases. For example, in 1996 Huugjilt was convicted of rape and homicide, sentenced to death and executed (by shooting). Because the case occurred during a “strike-hard” campaign, it took merely 2 months from the commission of the crime to his execution. Only until 2005 when the real criminal was arrested, was Huugjilt recognized as wrongfully convicted. Huugjilt was officially exonerated (posthumously) in 2014 and his family was compensated for more than 2 million RMB. In 2006, in another case, Nian Bin was identified by the police as the primary suspect of a poisoning case in Pingtan, Fujian province. From 2008 to 2014, Nian Bin’s case was tried multiple times by the Intermediate People’s Court of Fujian (the court of the first instance), the High Court of Fujian (the court of the second instance) and the national Supreme People’s Court. He was sentenced to death three times by the first instance court and his death sentence was affirmed and approved once by the High Court of Fujian. In other words, he was very close to facing death four times. Finally due to insufficient evidence, Nian was announced ‘not guilty’ in 2014 and he received more than one million RMB as a result of compensation afterwards.

Essay III: Deterrence and the Death Penalty

The deterrence effect is one of the most important reasons why people support the death penalty. The deterrence effect of punishment is derived from utilitarianism. Utilitarianism rarely considers motivations and means of one’s behavior but the maximization of benefits incurred by one’s behavior. What is good is to increase the maximum benefit; otherwise it is bad. The deterrence function of punishment uses coercive force to increase the suffering of criminals and therefore makes people fear for the punishment and dare not commit a crime. Scholars who support the deterrence of punishment claim that if people know beforehand that the pain from the punishment of a crime outweighs the gain from a crime, their will to commit a crime could be restrained and their crimes deterred and prevented. Generally speaking traditional deterrence theories believe that the effectiveness of deterrence is determined by three factors: swiftness, certainty and severity of the punishment. That is, once crimes occurred, the faster the punishment is rendered, the more certain the punishment is, and the more severe the punishment is, the more effective the deterrence effect is. The deterrence of punishment can be categorized as two kinds: specific deterrence and general deterrence. The former is to deter possible future crimes of a criminal through punishment of that particular criminal, and the latter is to deter crimes from all potential criminals through punishment of one particular criminal. In general the death penalty is considered the most serious in all kinds of punishment. Because the criminal can never commit a crime again after execution, the deterrence of the death penalty emphasizes the effect of general deterrence.

Many scholars point out that it is subject to debate whether the death penalty has its expected deterrence effect. For example, the reason why most people obey the law is not because of the fear of punishment after one commits a crime, but due to their belief in moral and ethical values. In contrast, a small number of vicious people know very well that their crimes will trigger strict punishment; nevertheless they still defy the law, and punishment (include the death penalty) is difficult to carry a deterrence effect on them. Moreover, the deterrence function of punishment assumes that criminals are capable of rational decision-making and are able to foresee the consequences of their crimes and to weigh potential benefits of their crimes with the consequences. In reality, however, not all criminals have such a capability of making rational decisions.

Does the death penalty have a deterrence effect? Empirical researches by Western social scientists showed that the deterrence effect of the death penalty is far less powerful than we think. For example, in the United States, most of condemned capital criminals are murderer, and quite a few of them committed crimes by passion. In such cases, criminals lose their capability of rational decision-making in the moment of crime. To date, there lacks reliable data to prove that the death penalty can prevent or stop murder effectively. In addition, the presumed deterrence effect of the death penalty on other violent and nonviolent crimes are also doubtful. For example, research shows that in the United States, some states that retain the practice of the death penalty have a higher rate of violent crimes than that of the state without the death penalty. Furthermore, scholars argued it is not true that “the more severe the punishment is, the better the deterrence effect is”, as its marginal deterrence effect decreases (when the severity of the punishment increases). In some circumstances, severe punishment (such as the death penalty) could increase the likelihood of unnecessary crimes by criminals (e.g., a criminal kills a rape victim to cover up the crime and destroys evidence and the dead body). In such circumstances, the use of the death penalty may further stimulate, instead of deter, one’s crimes. Besides, scholars who propose to abolish and replace the death penalty also point out that there are no reliable data to prove that the death penalty has a marginal deterrence effect to any other effective alternative penalties (such as life imprisonment without possibility of parole). That is, there is no proof that the death penalty carries more deterrence effect than that of other alternative penalties.

In China, the range of death penalty application is broader and covers not only violent crimes but also nonviolent crimes (such as drug trafficking, corruption and some economic crimes). In view of no existence of reliable data on crime and the death penalty, empirical studies of the deterrence effect of the death penalty in China are nonexistent. In recent years, some scholars point out that although China always applies severe punishment for drug crimes (e.g., the rate of death sentenced drug offenders stays at a high level), drug crimes keep increasing, thus questioning the deterrence effect of China’s death penalty to drug crimes. For the same reason, the presumed deterrence effect of the death penalty to other crimes (such as corruption cases) should be openly discussed and questioned.

Zhang, N. (2016). Crimes of counterrevolution and politicized use of the death penalty during the Mao era. In B. Liang & H. Lu (Eds.), The death penalty in China: Policy, practice and reform (pp. 62–96). New York: Columbia University Press.Google Scholar

LaChappelle, L. (2014). Capital punishment in the era of globalization: A partial test of the Marshall hypothesis among college students. American Journal of Criminal Justice, 39, 839–854.Google Scholar

Clarke, A. W., Lambert, E., & Whitt, L. A. (2001). Executing the innocent: The next step in the Marshall hypotheses. New York University Review of Law and Social Change, 26(3), 309–345.Google Scholar

25.

Lambert, E., & Clarke, A. (2001). The impact of information on an individual’s support of the death penalty: A partial test of the Marshall hypothesis among college students. Criminal Justice Policy Review, 12(3), 215–234.Google Scholar

Vollum, S., & Buffington-Vollum, J. (2010). An examination of social-psychological factors and support for the death penalty: Attribution, moral disengagement, and the value-expressive function of attitudes. American Journal of Criminal Justice, 35, 15–36.Google Scholar

Xiao, X. (2009). The interaction between public opinion and death penalty application in the context of China. Journal of Shandong University of Science and Technology (Social Science Edition), 11(1), 41–46.Google Scholar

Belkin, I. (2017). Justice in the PRC: How the Chinese community party has struggled with managing public opinion and the administration of criminal justice in the internet age. In F. Flora Sapio, S. Trevaskes, S. Biddulph, & E. Nesossi (Eds.), Justice: The China experience (pp. 195–228). Cambridge: Cambridge University Press.Google Scholar

Tang, Y., & Wang, M. (2007). On public opinion and judicial control of capital punishment. In Li Jie et al. (Eds.), Criminal Law Problems in Harmonious Society (863–870). Beijing: Publishing House of People’s Public Security University of China.Google Scholar

52.

Zuo, J. (2009). The influence of public opinion on the application of the death penalty. Chinese Sociology and Anthropology, 41(4), 80–88.Google Scholar

53.

Jiang, S. (2016). Public opinion and the death penalty. In B. Liang & H. Lu (Eds.), The death penalty in China: Policy, practice and reform (pp. 247–273). New York: Columbia University Press.Google Scholar

54.

Zhao, J. (2015). Public opinion on the abolition of the death penalty: Measurement of the idea about inculpation of the crime of organizing prostitution. Chinese Journal of Law, 2, 26–41.Google Scholar

Oberwittler, D., & Qi, S. (2009). Public opinion on the death penalty in China: Results from a general population survey conducted in three provinces in 2007/08 (Forschung Aktuell/research in brief 41). Freiburg: Max Planck Institute for Foreign and International Criminal Law.Google Scholar